The Americans with Disabilities Act (ADA) contains a rarely used provision
that protects employees who are not disabled but who are discriminated
against because they are associated with an individual, such as a spouse
or other family member, who is disabled. A recent case from the Tenth
Circuit Court of Appeals, Trujillo v. PacifiCorp, although not controlling
in the state of Georgia, has set a very strong employee-friendly precedent
that should be favorable to employees throughout the country.

William and Debra Trujillo were long-term employees of PacifiCorp and they
participated in the company’s health insurance plan. Their son Charlie
was also covered by the plan. Charlie had cancer (which the company was
aware of), and in the spring of 2003 he had a relapse, necessitating an
aggressive course of medical treatments which, as the company was self-insured,
eventually cost the company more than $60,000.

Just 11 days after Charlie’s relapse, the company launched an investigation
of the Trujillos on suspicion of time theft. After a brief investigation,
in which key witnesses were not interviewed, and suspect evidence was
relied on, the Trujillos were discharged.

In response, the Trujillos filed an association discrimination lawsuit
under the ADA, contending that they were terminated not because of their
alleged time theft but because of the healthcare costs the company incurred
as a result of Charlie’s illness. The lower court ruled in favor
of the company, concluding that the Trujillos failed to show that the
circumstances raised a reasonable inference that Charlie’s disability
was a determining factor in the company’s decision to fire them.

However, on appeal to the Tenth Circuit, the court reversed the lower
court’s dismissal, concluding that the Trujillos brought forward
sufficient evidence to raise an inference that the company’s decision
to fire them was based on Charlie’s disability. The court found
the following facts significant: that the company repeatedly expressed
general concerns about rising healthcare costs; that the company had made
numerous attempts to cut those costs; that the company admitted that it
closely monitored the progress of Charlie’s disease and his health
care costs; and that there was a very short time period between Charlie’s
relapse and the Trujillos’ discharge. The court concluded that these
facts created a prima facie case that the company terminated the plaintiffs
because they were “expensive employees.”

The court then concluded that the company’s stated basis for discharging
the Trujillo’s was pretextual. Because other similarly situated
employees received progressive discipline for similar or worse misconduct,
and because the company’s investigation into the alleged time theft
was shoddy and incomplete, the court found that this called into question
the honesty of the company’s claim that they discharged the Trujillos
for time theft.

Trujillo is an important decision for several reasons. First, an employer’s
desire to reduce costs is typically seen as a legitimate non-pretextual
basis for a decision to discharge an employee. For example, in the age
discrimination context, the courts repeatedly uphold discharges of older,
higher paid employees who are replaced by younger, lower paid employees
on the basis that reducing wage costs is not discriminatory as long as
such decisions are not simply a proxy for age discrimination. Despite
this well-established principle, the
Trujillo court noted, following the other courts that have interpreted the ADA’s
association discrimination provision, that one of the theories that can
support an ADA association discrimination claim is the “expensive
employee” theory-that it is unlawful to take an adverse action against
an employee because his or her spouse or other family member “has
a disability that is costly to the employer because the spouse is covered
by the employer’s health plan.”

The case is also significant because the Tenth Circuit was willing to rely
on a chain of inferences in support of its decision, even though each
inference in itself did not necessarily support a claim of discrimination.
Although the company criticized this method, characterizing it as one
which required the court “to build inference upon inference,”
the court rejected this argument, apparently being satisfied that the
collective weight of the inferences established a prima facie case of
discrimination. Obviously, in most employment cases, employers do not
admit to discrimination, and employees are forced to painstakingly build
a case of discrimination from the bits and pieces of circumstantial evidence
available to them. Trujillo thus sends a strong message that employees
are not required to “prove” their case in order to survive
a dismissal, but instead are entitled to the weight of reasonable inferences
of discrimination.

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